When families split up, parties are often concerned about how they will continue to support themselves and their children. In New Mexico family law, there are three primary types of support awarded by the court: child support, spousal support, which is also called alimony, and interim support. The district court with which a divorce or parentage action is filed has the authority, or jurisdiction, to order one party to pay the other all three types of support.

The most commonly asked about form of support is child support, which is governed by the New Mexico Child Support Guidelines. The child support guidelines were created by statute to provide a clear calculation of child support that begins with both parents' gross monthly incomes and then gives credit to both parents for amounts paid for work-related child care and health insurance coverage for their children. In New Mexico, the child support guidelines are mandatory and must be followed unless a court finds good cause for deviation from the guidelines. It is quite simply a mathematical calculation. Of course, this will not stop arguments over the beginning basis of gross monthly income.

In contrast to child support, spousal support is not mandatory in New Mexico. The courts will look at a variety of factors in deciding whether or not to award spousal support, including the length of the parties' marriage, the relative earning capacity of each party and the parties' age and health.

In turn, interim support (interim division of income and expense) is different from both child support and spousal support because interim support is only effective from the date of the parties' separation until their divorce is finalized. It is calculated by adding all the income of the parties, subtracting all the allowable expenses, and dividing what's left over equally between the parties. This is often a hotly contested calculation.

By contrast to interim support which terminates upon finalization of the divorce, child support and spousal support are normally only effective once a divorce is finalized. Both interim support and spousal support are only available to parties who were married, whereas child support is imposed in any case in which parties share a child, whether or not they were married.

Calculation of any of these types of support can be complicated and will depend heavily on both parties providing accurate income information. Contacting a qualified family law attorney can help parties collect income information in order to ensure that any type of support is fairly imposed and enforced by the courts.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Depending on the circumstances of a divorce, there can often be months or years that elapse between the time the parties separate and the finalization of the divorce. This delay can be caused by a variety of reasons from the legitimate to the malicious.

No matter the reason, the parties' debts still need to get paid while the divorce is pending and both parties are entitled to a portion of the community income. New Mexico Rule 1-122 accordingly allows the court to issue interim orders allocating income and expenses. The payments awarded in these orders is often referred to as interim support.

The premise underlying interim division of income and expense or interim support is that even though the parties may be separated, they are still technically married, which means that all of their income and debts are still community and must be allocated equally between the parties.

In order to calculate interim support, the court, or more often the parties themselves and their attorneys, creates a table that starts with the parties' gross monthly income. The court then allows each party to subtract their regular monthly payroll deductions to reach each party's net monthly income. Each party is then allowed to deduct their regular and necessary monthly expenses from the net income, which include among other things rent, mortgage payments, utilities, car payments, insurance, phone bills and the minimal monthly payment on credit card bills.

The money left between the parties after the subtraction of monthly expenses from net monthly income is referred to as the parties' spendable income. If the number for the parties' net spendable income is positive, then an equalization payment must be made so that each party gets half of the community's total monthly spendable income. If the parties have children, then an extra percentage may be added to the equalization payment to compensate the party with whom the children are primarily living. This equalization payment is called interim support.

What expenses can be included in an interim support calculation is often the subject of great conflict between the parties due to the allocation of the remaining net monthly income after deduction of these expenses. Both parties will often fight very hard to create an income and expense sheet most favorable to them in the end equalization of income.

Interim division of income and expense can be critical to the interests of the parties while the divorce is pending. However, this division is often both complex and contentious making it important to consult with an experienced New Mexico divorce and family law attorney in addressing these issues.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

What happens if parties to a divorce or paternity case have gone through all of the mediation and court hearings required to reach a parenting plan that establishes child custody, but one parent just won't comply with the Court's order? In New Mexico, the non-complaint party may be charged with the crimes of custodial interference or unlawful interference with custody.

These crimes are similar and both are fourth degree felonies which means that a person found to be guilty of either crime, may be imprisoned for up to 18 months and fined up to $5000. In addition, the offending parent may suffer additional consequences in the family law court with awards of attorneys fees and costs. The crime of custodial interference is committed when one parent maliciously takes, detains, conceals or fails to return a child to the other parent by the terms of the parenting plan or custody orders without good cause and with the intent to deprive the other party of custody for a protracted period of time or permanently.

In contrast, the crime of unlawful interference with custody is committed when a party who does NOT have a right to custody of a child maliciously takes, detains, conceals or fails to return the child to the party who rightfully has custody. Any law enforcement officer that is called upon to investigate a charge of custodial interference or unlawful interference with custody may take a child into protective custody, if that officer believe that a person may flee with the child. The child may then be returned to the custodial parent or may be held in a community-based shelter until a civil court can hold a hearing to determine or enforce custody.

While law enforcement has the authority to investigate and take action in both types of custodial interference cases, it can be very difficult to track a child down once a parent or other party has taken them. Thus, any person faced with such a situation should call law enforcement immediately and should also consult an experienced child custody attorney to make sure that their custodial rights are protected once the child is recovered.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In New Mexico, the Family Violence Protection Act allows a victim of domestic violence to file a petition for order of protection, asking the Court to enter an order of protection preventing the person committing the domestic violence (called the restrained party) from having any contact with the abused party (called the protected party). Orders of protection are a specific type of civil restraining order and they can have a variety of consequences for all of the parties involved.

The primary consequence of an order of protection is that the restrained party cannot go within 100 yards of the protected party's home or workplace and must stay 25 yards away from the protected party in public. An order of protection may also prevent or regulate contact between any children that the parties may have together. The order of protection also prevents telephone, which includes texting, and e-mail contact between the parties.

All of these requirements will be explained in the actual order of protection; however, an order of protection has other consequences that are not as clear. If the order of protection is issued after a hearing at which the judge or special commissioner makes a formal finding of domestic violence, then the order may have long-term consequences on the restrained party's future employment opportunities, firearm rights, and immigration rights. The immigration consequences are perhaps the most serious of the collateral consequences since a finding of domestic violence may result in removal or deportation of the immigrant offender. Because of these very serious consequences, the parties may also agree to a Stipulated Order of Protection that does not include a finding of domestic violence.

Both types of orders of protection are filed with the National Crime Information Center (NCIC) so that they can be easily enforced by police across jurisdictions. In the case of a stipulated order, the restrained party is still prevented from any and all contact with the protected party and cannot possess a firearm while the stipulated order is in place, but there is no formal finding of domestic violence that would have to be reported later when applying for jobs, a firearms license or immigration procedures.

Finally, a violation of an order of protection can also result in criminal and civil penalties, including fines, jail time or both. Thus, if you are a party to a petition of order of protection, it is important that you discuss your case with an to make sure that the appropriate type of order of protection is entered and to ensure that it is properly enforced.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Family law may be the most emotionally fraught area of the law. Parties to a divorce, paternity , child custody or child support action may be dealing with major changes to the most basis aspects of their family and financial lives. This level of emotion can lead parties to simply refuse to respond to documents filed by their spouse or the parent of their child. Of course, sometimes parties fail to response for other reasons, but whatever the cause the result can be a real pain to deal with for both the courts and the party filing the court action.

When a party fails to respond to an action filed with the court, the party who filed the action can ask that the court grant what is called a default order of dissolution of marriage. As part of the application for a default order, the party seeking the relief of the court must first show that the non-answering party received proper notice through service of process, and has still failed to respond.

Defaults are not favored in the courts. This is particularly true in family law matters. The default process can be very time consuming process. Even with proof of service, the court may order that the party seeking relief publish notice in the newspaper to make sure that the non-answering party had an ample opportunity to respond.

Even then, the court may require that the filing party come to a hearing and tell the court all of the steps taken to try to reach the other party. If the court is satisfied that good faith steps were taken to apprise the non-answering party of the court's proposed action and the non-answering party still refuses to answer, the court will most likely issue a default order granting the filing party whatever relief it has sought from the court, as long as that relief is allowed by law.

Then comes the bad news. Default orders in family law proceedings often get set aside. Again the courts do not favor defaults. Default judgments are generally disfavored in New Mexico because they deny the non-responding party his or her basic constitutional right to notice and an opportunity to be heard. They are even more disfavored in family law cases due to the issues that are involved such as a child custody and child support which are by definition modifiable. Thus, even when the default order is upheld, much of the order may be modifiable anyway.

It is best to avoid the default order if at all possible. The attorney fees and costs can be significant and in the end, the order may be set aside or modified. However, if it is unavoidable then it is imperative that all of the proper procedural steps be followed when obtaining a default order. To avoid missteps, it is important to seek the advice of an experienced divorce and family law attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Unlike other states, in New Mexico, the process for obtaining a legal separation is nearly identical to that for getting a divorce. Parties often mistakenly believe that they can get a legal separation faster and cheaper than they can get a divorce. However, in granting a legal separation the New Mexico courts will still need to divide all of the property and debts, and determine child custody and child support, which means that obtaining a legal separation, is not any faster than the divorce process. Nor does it save on attorney fees.

Most of the same documents will need to be filed as with a divorce and nearly all of the same steps will be taken by the court, except that at the end of the legal separation process the parties cannot legally remarry. In the end, if a divorce is inevitable and the end objective, then a legal separation will greatly increase the attorney fees, time and stress of the process.

This leads to the question, why file for a legal separation? Some parties may pursue a legal separation for religious reasons if their church does not frown on legal separation the same way it does on divorce. Others may file for legal separation rather than divorce because in some cases both parties may keep the health benefits earned by one spouse if they are legally separated but not if the parties are divorced.

Given the limitations of health care in the United States, this second reason can be a powerful incentive for seeking a legal separation rather than a divorce. However, the health care issue can be pretty tricky. Not all insurance policies allow continued coverage for parties that are legally separated. It is therefore important to check with the individual policy before pursuing this option.

Essentially, anyone contemplating a legal separation rather than a divorce should consult with an experienced divorce and family law attorney. It may be that a legal separation is not the best route. And even if it is, it is important to understand all of your rights and obligations in moving forward.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Two unique facets of the New Mexico law governing divorce make the process of getting a divorce in New Mexico very different from other states. First, New Mexico does not have a waiting period that must be observed before filing for divorce. This means that parties who have been married for one day have the same standing to file a petition for dissolution of marriage (the document filed with the court that begins the divorce process) as parties who have been married for 25 years.

However, it is important to note that even though there is no official waiting period, the party filing for divorce must still meet the jurisdictional requirement of the New Mexico courts, which requires the party to have lived in New Mexico for at least six months prior to filing for divorce.

The second major difference between New Mexico and other states is that New Mexico is a No Fault divorce states. This means that the courts here will grant a divorce on the basis of incompatibility alone and do not require, for instance, that one party show that the other has committed adultery or any other wrong against the marriage.

Only one party needs to plead incompatibility for the New Mexico courts to begin the divorce process. Typically, the family law judges will not hear arguments about infidelity or bad behavior by one party unless they directly affect custody or some aspect of property and debt division essential. Neither will the court entertain counter arguments to incompatibility.

Many parties find the No Fault policy unsatisfying because the court does not hear about all of the hurtful things their spouse may have done. However, the positive side of a No Fault divorce is that embarrassing information about the parties' personal habits or sexual proclivities can be kept private and will not necessarily need to be debated in open court. For these reasons, conflict is also reduced. This too speeds up the divorce process and results in substantial reduction of emotional and financial costs to the parties.

Even though the lack of a waiting period and the policy of No Fault make the process of divorce in New Mexico somewhat simpler than other states, it is still very important that parties to a divorce proceeding consult an attorney as early as possible in the process so that they can make sure all that they understand all of their rights and responsibilities under the law.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

According to a recent article in the Albuquerque Journal, the number of child support enforcement cases pending in New Mexico has reached a record high. The Child Support Enforcement Division, called CSED for short, is a part of the New Mexico Human Services Department and is responsible for enforcing parents' child support obligations. CSED officials believe that the increase in cases is due to the bad economy, which means that the enforcement cases have increased but that actual collections of unpaid back child support are down.

CSED can get involved in a divorce or paternity case in multiple ways. The most common situation is when the custodial parent gets any kind of financial assistance from the State or Federal government to assist them in raising their child. In these cases CSED automatically sets up a case and will begin trying to establish and collect support from the non-custodial parent. Where applicable, part of the money collected from the non-custodial parent will go to repaying the State for the assistance it has paid to the custodial parent. A CSED case may also be automatically opened when the custodial parent applies for Medicaid coverage for a child. And, finally, a parent who is not receiving public assistance or Medicaid, but who has a child support order that is not being followed can go to CSED and ask that a case be opened up on their behalf.

Once an enforcement case is opened, CSED has extensive power to force non-custodial parents to pay support, including the garnishment of wages, the seizure of bank accounts and the suspension of driver's licenses. Thus, if you are a parent who gotten behind on support for whatever reason, it is important that you seek the advice of an attorney experienced in child support matters immediately before CSED begins to take enforcement and collection action against you. In turn, if you are a parent who is entitled to support but is not receiving it, speaking with an attorney can show you the various options available to begin encouraging your child's parent to pay support.

CSED is generally very helpful and cooperative so long as you address the situation. This means that you immediately contact them to address a problem as it arises. Often times, there are solutions that both parties and CSED can live with. Due to their vast experience in child support matters, CSED attorneys will know every available alternative short of financial ruin for either party. That is the good news. The bad news is that CSED is overwhelmed with cases so it may be difficult to make contact with someone with decision-making authority. This alone will typically indicate and justify hiring your own attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

What happens when one a parent wants to move out of state, or even to another city within New Mexico? Relocation of one of the parents often has significant consequences for child custody and timesharing.

Relocation of a parent outside of New Mexico, or even within New Mexico, can be a very difficult situation for parents who may have to choose between job or family obligations and being close to their child. It can be an even more difficult situation for a child who is faced with leaving their school and their friends and the possibility of seeing one parent much less frequently than they did before the move.

Both the federal and state constitutions protect the right of citizens to travel and move freely about the county, but while a parent has the right to move, they do not necessarily have the right to take their child with them. Where there is an existing parenting plan setting forth custody and timesharing, a parent who wants to move must file a motion to modify the parenting plan and timesharing agreement as soon as they know they will be moving. A relocating parent should understand that New Mexico will maintain jurisdiction over child custody and timesharing despite the move.

If parents have split, but have never established a formal parenting plan, it is a good idea to get a parenting plan entered by the court prior to moving. In cases where there is no parenting plan, the parent who is not relocating would be very wise to file a Motion with a Temporary Domestic Order to prevent the other parent from taking the child out of state and thereby escaping New Mexico jurisdiction over child custody and timesharing.

When a parent must move suddenly, they should still file a motion to modify timesharing before they leave and either travel back for the hearing or ask the court if they can appear at the hearing via telephone. The relocating parent should be prepared for a long and frustrating process. He or she should also understand that the Court may not look favorably on the relocation for purposes of establishing child custody and timesharing

As with all custody decisions, the court's primary consideration in evaluating a modification of a parenting plan to accommodate a parent's move is the "best interests" of the child or children involved. If one parent has sole legal and physical custody, then the court will most likely find that it is in the best interest of a child to remain with that parent. In a situation where the parents share custody, but one parent wants to move with the child, the court will have to determine whether it is in the best interests of the child to stay in New Mexico or to leave with the relocating parent.

That determination rests heavily on the parent's reason for moving and how much of a disruption the move will cause for the child. The court will consider all of the child's circumstances such as family bonds, friendships, schools, sports, extracurricular activities among other issues. Most importantly, the court will look to see how the move will affect the child's relationship with the other parent. The court will almost always deny a parent's request to move with the child if that request is made as a bad faith attempt to prevent contact between the child and the other parent. Finally, if the change in the parenting plan, custody and timesharing is contested, the case will be referred to family court clinic for a full custody evaluation. This can take months and it rarely moves faster for the convenience of either party.

If a court does grant one parent the right to move with the child, the court will need to devise a new visitation schedule that accommodates the new distance between a child and parents. This can be expensive as parents will now need to pay for travel costs to facilitate visitation and can be very difficult when a child is too young to travel alone. The constraints of time, distance and a child's school schedule are only a few of the factors to be considered when one parent wants to move, which is why it is important that each parent consult an attorney if they are faced with such a potential change to custody and timesharing.

www.CollinsAttorneys.com